Watson v. Equitable Mortgage Co.

(After stating the foregoing facts.)

This litigation in various forms, has been in court for many years. Under the law, we think it should come to an end. Whether the application of Watson, as trustee, for leave to mortgage the property was duly served or properly passed upon at chambers, and whether the estate of the children of Mrs. Watson was subject to be encumbered by the trustee for a loan, or an indebtedness incurred by him, or whether the reverse is true, are merely academic questions in the present state of the case. R. H. Watson Jr., as trustee, applied for and obtained leave to make the mortgage, and did make it. It purported to cover the title to the land in fee, not a mere life-interest. All of the children of Mrs. Watson consented in writing to the making of the mortgage. Four of them were then of age, and not only agreed to the application of' the trustee, but also joined in and signed the mortgage itself. Whether, under the order and acts of the trustee, their interest or title was subject to be mortgaged or not, they are in no situation to complain of their own conduct. If their interest was a legal estate in remainder, no reason appears why they could not mortgage it, if they so desired. They were parties to the foreclosure proceeding. As to the four children who were of age, therefore, the mortgage made to Brooks & Company was legal and binding,' and the foreclosure and sale carried with it whatever title or interest they had. There was nothing more for them to litigate about.

As to the other four children, they also knew of the application Of Watson as trustee to be allowed to execute the mortgage, and consented to his doing so. There is no contention that they did not know that he executed the mortgage in accordance with the application, or that money was loaned upon it, or that a foreclosure and sale were had, or that their mother purchased from Head & Com*160pany, and subsequently executed a security deed to the Equitable Mortgage Company. The mortgage was executed by Watson, as trustee, and the other children in February, 1885. At that time the youngest of the four children who did not sign it was seventeen, years of age. It was foreclosed in 1886, and the sheriff sold the land in 1887. In the same year Head & Company, who were the purchasers at the sheriff’s sale, sold and conveyed the land to Mrs. Watson. In 1890 she obtained the loan from the Equitable Mortgage Company and executed the security deed to it. All of these four children were still in life except one. If they were parties to the former litigation with the mortgage company, they were bound by the result, if the court had jurisdiction of the subject-matter. If they take the position that they were not parties to that litigation and did not assert any claim of title therein, then they have stood quietly by, knowing that they had agreed to the making of the original mortgage, which was the beginning of the whole transaction, and seeing sales made, titles conveyed, and parties change their status in regard to the land, without any effort to interpose any objection or to claim any title or to repudiate their agreement that the original mortgage should be made, until in 1906 they interposed a claim to the sale of the land under the fi. fa. issued in favor of the mortgage company against Mrs.- Watson, and then by answer to the present equitable proceeding of the company asserted that an unincumbered title in remainder was vested in them. It might well be doubted whether they would have any status now to upset the various transactions and conveyances which have been made, and whether they would not be estopped by their conduct and laches. But in fact they were bound by the judgment in the former litigation. Watson, as trustee, filed an equitable proceeding to enjoin the mortgage company from obtaining a judgment declaring a special lien upon the land, setting up that as trustee he represented the children of Mrs. Watson, and certain grandchildren who stood in the place of a deceased child; that the order authorizing the making of the mortgage to Brooks & Company was void and conferred no rights as against them; that the sheriff’s deed under the foreclosure of such mortgage, and the deeds since made, including the security deed to the Equitable Mortgage Company, should be cancelled as clouds upon the title; and praying that he have such further legal and equitable relief as might be *161proper. The other children of Mrs. Watson, and the children of the deceased daughter, applied to be made parties, and prayed that the ease should proceed as if originally filed in their names. They charged unfaithfulness on the part of the trustee, and prayed that he be removed; and also alleged that the mortgage company should not be allowed to acquire any title to the lands, as it would east a further "shadow” upon their title. A verdict was rendered and a decree entered in favor of the Equitable Mortgage Company.

It is true that if the children and grandchildren of Mrs. Watson be treated as remaindermen in fee under the original trust deed, they could not sue to recover possession of the land during the life estate. But they filed, not a suit to recover possession, but an equitable proceeding to protect their alleged remainder interest,- and to have alleged clouds removed from it. The Equitable Mortgage Company did not defend on the ground that they were remaindermen in fee, filing suit' prematurely, but on the ground that Mrs. Watson had the fee-simple title, that the company was entitled to proceed against the land, and that the deeds were not clouds but conveyances carrying perfect title. The merits of the controversy were in issue without objection. Watson, as trustee, and the other children of Mrs. Watson, and the representatives of the deceased child made the contention, and were met on the merits. There was a verdict and decree against them. They are bound by the judgment which they have invoked, deciding that the fee-simple title was in Mrs. Watson, and that the deeds under which she held were not clouds, but conveyances of title.

- The grandchildren of Mrs. Watson, who claimed to stand in the position of their deceased mother, were apparently minors. But this was not a suit brought against minors, requiring service upon them and the appointment of a guardian ad litem in order to bring them before the court. It was a suit instituted by a person claiming to be a trustee acting for the benefit of these minors along with others. At their own instance, through an attorney representing them, they applied to be made parties complainant, and filed pleadings as such in the case. They were thus proceeding as plaintiffs, not being proceeded - against as defendants. Section 4.947 of the Civil Code declares that “A suit commenced and prosecuted by an infant alone is not void, and although the suit is de*162fective in wanting a guardian or next friend, the defect is amendable before verdict, and cured by verdict.”

As set out as an exhibit in one place in tie record before us, referred to in the brief of evidence, the amendment is stated to have been allowed by the presiding judge, and such allowance appears to be signed by him. As set out in another place in the record, this amendment has upon it the words, “Amendment allowed and ordered filed, August 27, 1904,” which is unsigned, but is immediately followed by an entry of filing by the clerk. If the former is correct, the amendment was formally allowed by order signed by the presiding judge. If the latter be correct, the order allowing the amendment was not signed by the judge, but the amendment was filed in the office of the clerk, and was evidently treated as a part of the pleadings in the case.

K. H. Watson Jr., testified that what he did in regard to giving a mortgage to Brooks & Company was for the benefit of -the life-estate, and that he did not intend to give a mortgage affecting the interest of the children. (The mortgage itself, however, was not confined to the life-estate, but was on the fee simple.) He also testified that he employed Mr. Berner, the attorney who appeared for him and for the other children of Mrs. Watson and her grand^ children in the former litigation, for the purpose of protecting the trust estate, but did not employ him for the remaindermen. Another of the children of Mrs. Watson testified that he joined in employing the attorney to assist his mother in protecting her estate, but not to represent any interest in remainder; but he added, “Mr. Berner came to my house a few days before that time, and I agreed to the verdict in the case, as did the other children.” Two attorneys of the court testified that they were counsel for the Equitable Mortgage Company, “in the ease of B. H. Watson et al. v. Equitable Mortgage Company;” that Mr. Berner represented “the plaintiff;” that counsel agreed that the verdict and judgment should be taken in the case for the defendant, which was done, but Mr. Berner continued it for more than a week “to acquaint his clients of it and get their full consent thereto; they all knew of the suit and agreed to the direction given it,” and that some of the plaintiffs and the husbands of others were present at the time. None of the children or grandchildren of Mrs. Watson denied the employment or authority of Mr. Berner, except in the very quali*163filed way in which two of them testified as above stated. When .an attorney appears of record for parties who do not deny or disprove his authority, presumably he is employed and has the authority of an attorney in the case. It is evident that the amendment was treated and acted on as a part of the pleadings. Swatts v. Spence, 68 Ga. 496 (3). One of the witnesses stated that the youngest of the children was, at the time of the trial of the present case, 39 years of age. No attack by any direct' proceeding was made upon the verdict or judgment in the former case, nor was any fraud or collusion shown. _ We think the parties are bound.

On the trial the' record of the deed from McMickle was introduced in evidence. It recited that the conveyance was to Bufus II. Watson Jr., “for the use, benefit, and advantage in trust for ¡said Mary M. Watson for life (exempt from marital rights of B. H. Watson Jr., or any future husband said Mary M. Watson may have), for her sole and separate use, and, on her decease, to such ■child or children as she may have in life.” The original deed was in court in the possession of counsel for the defendants. He objected to the admission of the record, and, after an adverse ruling, put the original deed in evidence, and moved to rule out the record and also to have the recorded deed corrected, as some words were omitted which were included in the original deed. The court refused to so order or to exclude the deed as recorded, but ruled that both deeds should go to the jury, leaving the issue made to be passed on by them. As he ultimately directed a verdict, the matter did not take that direction. The only point of materiality about this was that the original deed contained the words, “or representatives of child or children,” which were omitted in the ■deed as recorded, so that the original deed read, “and, on her' decease, to such child or children or representatives of child or children as she may have in life.” Assuming that the trust was only for the life-tenant, with remainder, in fee, the only difference these words.would make would be as to the children of the deceased daughter. With such words in the deed they would stand in place of their mother under the terms of the deed itself, but they would stand in no better position than would their mother if in life. With those words omittéd, they would inherit such title as their mother had. The insertion of those words would not make them any the less bound by the former ad*164judication. They there appeared and attacked the mortgage and deeds as already stated. The judgment was against all of the parties now claiming as remaindermen. They set up their rights under the McMickle deed. The omission of the words mentioned from the record does not prevent them from being bound. Moreover, the deed is now in the custody of these parties. There is nothing to indicate that it was ever lost or not accessible to them. If in other exhibits in former cases and in this case they have omitted those words, there would seem to be no reason why they should have relief because of that fact.

Judgment affirmed.